# Opposition — Enmund v. Florida

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1982
- **Citation:** 458 U.S. 782

## Text

;

QUESTION PRESENTED

WHETHER A DEATH SENTENCE IMPOSED
UPON A DEFENDANT CONVICTED OF FIRST
DEGREE MURDER IS DISPROPORTIONATE
TO THE CRIME IN VIOLATION OF THE
EIGHTH AND FOURTEENTH AMENDMENTS TO
THE UNITED STATES CONSTITUTION,
WHEN THE DEFENDANT'S PARTICIPATION
IN THE CAPITAL FFLONY WAS MAJOR,
TO-WIT: THE DEFENDANT PLANNED THE
CAPITAL FELONY, WAS PRESENT WITHIN
A FEW HUNDRED FEET OF THE MURDERS,
DROVE THE GETAWAY VEHICLE, AND
PARTICIPATED IN AN ATTEMPT TO AVOID
DETECTION BY DISPOSING OF THE
MURDER WEAPONS?

PARTIES

In the Supreme Court of Florida, Petitioner was the

appellant and the State of Florida was the appellee.

TABLE OF

CONTENTS

QUESTION PRESENTED ......-.
PARTIES . 2+ ee ee ee eee s
TABLE OF CONTENTS .....+-
TABLE OF CITATIONS s
CITATIONS TO OPINIONS BELOW .
STATEMENT OF THE CASE ... .
STATEMENT OF FACTS s
JURISDICTION . . 2. © © © © @ ©

REASONS WHY THE WRIT SHOULD NOT BE GRANTED

CONCLUSION . . «© «© © «© © © © © «
CERTIFICATE OF SERVICE Kk.

TABLE OF

CITATIONS

CASES

Enmund v. State
8 362 (Fla. 1981) .

Gress Vv. 8 8
. * (1976) * . . .

Jacobs v. State

396 86-24 1113 (Fla. 1981)

Lockett v. Ohio,
-S. CRGVG) © © 0 «6

Proffitt v. Florida,

Stein v. New York,
. . 1953) . . . . .

OTHER AUTHORITIES
28 U.S.C. J 1237 ()

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PAGE

1.29
9,14

13
10,11-13
13,14

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CITATATIONS TO OPINIONS BELOW

The opinion of the Supreme Court of Florida upon which

review is sought is reported as Enmund v. State, 399 So.2d 1362

(Fla. 1981). Rehearing was denied on July 20, 1981.

STATEMENT OF THE CASE

Respondent does not accept Petitioner's Statement of the
Case and instead asserts the statement of the case as set forth
by the Supreme Court of Florida in its opinion in Enmund v.
State, 399 So.2d 1362 (Fla. 1981):

This cause is before the Court on
appeal from a judgment of conviction on
two counts of murder in the first degree
and one count of robbery. The Circuit
Court of the Tenth Judicial Circuit, in
and for Hardee County, sentenced
appellant Earl Enmund to death, thus
vesting in this Court jurisdiction of
his appeal. Art. V, § 3(b)(1),

Fla. Const.

The appellant and co-defendant
Sampson Armstrong were tried together
and convicted of the first-degree
murders and robbery of Thomas and Eunice
Kersey. After returning verdicts of
guilt the trial jury heard evidence on
the issue of sentence pursuant to
section 921.141, Florida Statutes
(1975), and recommended the death
penalty for both defendants: The trial
court imposed sentences of death on the
appellant for the two counts of
first degree murder and a sentence of
life imprisonment for the crime of
robbery. We affirm the judgments of
guilt of murder and robbery and the
sentences of death.

Id. at 1363.

ee

STATEMENT OF FACTS

Respondent does not accept Petitioner's Statement of Facts
as set forth in Petitioner's Statement of the Case and instead
tenders the following facts as set forth by the Supreme Court of
Florida in its opinion:

On April 1, 1975, at about eight
o'clock, a.m., the bodies of Thomas and
Eunice Kersey were discovered by their
daughter in their rural Hardee County
home, located on state highwey 62
between Fort Green to the west and
Wauchula to the east. Mr. and Mrs.
Kersey, aged eighty-six and seventy-four
respectively, had been shot to death.

Some of the evidence constituting the
state's case in the trial court consist-
ed of physical items recovered at the
scene and examined in the course of
investigation. The bodies were found on
the kitchen floor, near the back door of
the home. There was a quentity of blood
on the floor, some five feet away from
where che bodies were lying, that
prompted the authorities to invescigate
the possibility that one of the
perpetrators was wounded during the
attack. Later that morning, police
found Jeanette Armstrong, the wife of
co-defendant Sampson Armstrong, being
treated for a gunshot wound in a
hospital in nearby Avon Park, in
Highlands County. The blood recovered
at the scene proved to be of a different
type from either of the kerseys blood,
and to match the blood type of Jeanette
Armstrong.

On the ground outside the house,
investigators found a plastic jug filled
with water.

There were four firearm projectiles
found at the scene. One was on the
ground outside the house, one in the
door jamb of che back door, one in the
water heater in the kitchen of the
house, and one on the floor, under the 5
body of Mrs. Kersey. Mrs. Kersey was
shot six times in all, with three of the
wounds being superficial so that three
of che bullets exited the body. Three
bullets remained in her body and were
recovered. The three bullets found in
the body all entered the body in the
right side and passed downward.

Mr. Kersey was shot twice. One
dullet entered his right arm and

passed on through his heart to the ieft
side of his body. The other entered his
chest from directly in front. Both
bullets were recovered. The bullet that
entered from the right side had a slight
downward angle. The one that entered
the front of the chest was almost
straight in its path from front to back.
According to expert firearms identifi-
cation testimony, one of the bullets
recovered was a .38 caliber and the
other was a .22 caliber. The .38
caliber bullet from the body of Mr.
Kersey, a .38 caliber bullet from the
body of Mrs. Kersey, and the .38 caliber
bullet found in the kitchen door jamb,
where [sic] all fired from the same
weapon. The .22 caliber bullet found in
the body of Mr. Kersey and a .22 caliber
bullet from Mrs. Kersey were both fired
from the same gun.

The pathologist who testified at
trial told the court and the jury that
when a bullet enters the body, it can be
deflected in numerous ways, so that it
is difficult to discern the angle of
fire from the path of the bullet. With
regard to the specific question of
reconstructing the position of Mrs.
Kersey when she was shot, based on the
paths cf the bullets, the pathologist
testified, "Well, there are all sorts of
possibilities. .. There is really no
way that I could determine what position
her body was in when she was shot.

Is he was shot from below, above, and
behind." None of the entrance wounds on
either of the bodies were inflicted from
a range of closer than several feet
away.

The state presented the testimony of
a witness who drove by the Kersey home
between 7:30 and 7:40 a.m. on the day
the bodies were found. When she passed
the Kersey home, she saw on the side of
the road a 2 cream-colored car with
a license tag bearing the prefix number
18. There was a black man in the car.
Another witness for the state drove by
the house at 7:35 that morning and saw a
car parked beside the road about two
hundred yards west of the house. It vas
a large, yellow car with a dark colored
top. There was one person in the car.

The state's evidence also included
the testimony of two of the Kerseys'
neighbors. One testified that on April
lst he was at work on his own land only
two or three hundred yards from the

kerseys house when, at about 7:45 a. u.,
he heard from six to fifteen shots of
gun fire and some highpicched screaming.
The other neighbor said that he lived
only two hundred yards west of the
Kerseys, and that between 7:30 and 8:00
o'clock that morning he heard about
seven loud sounds. He would have
thought that they were caused by Mr.
Kersey hammering to separate some scrap
metal, except for their irregular
sequence. From the sounds he remember-
ed, he concluded chat they also could
have been gunfire.

A neighbor of the appellant also
testified for the state. He said he
lived about three-fourths of a mile from
Enmund's home, and that they both lived
on a road that runs off of New York
Avenue south of the town of Wauchula.
This witness cestified that on the
morning of April Ist, at about 6:30 he
was standing out beside the road, New
York Avenue, that goes into Wauchula to
the north. He was waiting for a ride
that was to take him to another town on
personal business. The person who was
to meet him there did not come that
morniag, but he was still standing there
waicing for him after 8:00 o'clock. The
witness said that at approximately 6:30
or 6:45, he saw Earl Enmund and his
former common-law wife Ida Jean Shaw in
their yellow Buick with a vinyl top.
Ida Jean Shaw was driving. There were
two others in the back seat, one male
and one female. The car traveled north
toward town (the town of Wauchula). At
about 8:00 o'clock, the car came back,
travelling "pretty fast in a southerly
direction on New York Averue, with the
appellant driving, Ida Jean Shaw in the
front seat, and one of the other two
— le in the car lying down across the

ack seat.

The husband of the kerseys grand-
daughter testified that Mr. Kersey
usually kept large amounts of cash on
his person. He generally kept the cash
in che form of one-hundred-dollar bills.
Ic was not unusual for him to have from
ten to twenty of these on his person at
any given time. He kept che money in
his wallet, and the wallet was in his
hip pocket at all times. He normally
slept in his regular work clothing and
kep’ che? wallet in his pocket even as he

slep .

Mr. Kersey, the witness testified,
liked to show his cash to people he
dealt with, and he did so frequently

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and indiscriminately. He tended to save
his money rather than to spend it, and
he was proudly vocal about having it.

He was a large, strong man who felt that
he could protect his wallet.

Another witness testified that two
weeks prior to the murders, he saw that
Mr. Kersey had from twelve to fifteen
hundred dollars on his person.

A few weeks prior to the murders, the
appellant and a friend jointly purchased
a calf from Mr. Kersey. They paid him
in cash and when Mr. Kersey took out his
wallet to put away the money he showed
them its contents. Appellant Enmuind
said, "Look at the money this man's
got. Mr. Kersey responded, "That ain't
no money. I can dig up $15,000, $16 ,000
any time I want to. Appellant's friend
told Mr. Kersey that he shouldn't be
showing his money around like that. Mr.
Kersey said, "I know you, Jim." The
other man responded, "Yeah, you know me
but you don't know the rest of then.
After the killings, Mr. Kersey's wallet
was not found on his person or anywhere
in the house.

J. B. Neal testified that at about
noon on April 1, 1975, he saw co-
defendant-Sampson Armstrong in Lake
Placid, in Highlands County. Armstrong
told Neal that he and his wife Jeanette
had done a robbery that morning at a
ranch house outside of Wauchula and that
Jeanette had been shot. Armstrong told
the witness that they had gone to the
back door of the house of an elderly man
and woman, saying that they needed water
for an overheated car. When Mr. Kersey
came out of the house, Armstrong grabbed
him, held his gun on him, and told
Jeanette to get the money out of his
pocket. Then, the old man cried out to
his wife, and — a window Armstrong
saw Mrs. Kersey coming out the front
door and around the house with a gun.
Mrs. Kersey shot Jeanette Armstrong.
Then Armstrong knocked the old man down
and shot Mrs. Kersey. Mr. Kersey got
back up and Armstrong shot him in the
chest. After the shooting, they put the
old people in the house, took the money.
and left.

Jeanette Armstrong is the daughter of
Ida Jean Shaw. In April of 1975, Ida
Jean Shaw and Earl Engund were living
together as husband and wife,

and had been doing so for about twelve
years.

There was testimony that the investi-
gating authorities, based on witnesses’
descriptions of the car seen near the
Kersey home the morning of the murders,
began to search for a large, yellow or
cream-colored car with a dark top and
having an "18" license tag prefix. They
found a car meeting this general
description in the possession of Ida
Jean Shaw.

At Walker Memorial Hospital in Avon
Park on the morning of the murders,
police questioned Ida Jean Shaw
concerning Jeanette Armstrong's gunshot
wound. She told them that she and
Jeanette had been travelling that
morning from Wauchula to Avon Park when
Jeanette entered an orange grove to
urinate and was shot. In the subsequent
course of the investigation of the
Kersey murders, Ida Jean Shaw gave a
statement to the state attorney
—u— the appellant and Sampson
Armstrong in the crimes. Subsequent to
that initial statement, she gave two
statements, one of them a formal
deposition, in which she repudiated the
original statement. In these statements
she said that Jeanette Armstrong left
her house on March 31, 1975 with two men
referred to as Luke and Willie.
According to this story, Jeanette said
that they were going to Fort Myers to a
nightclub. On the foliowing morning,
Luke and Willie brought Jeanette home
wounded. Jeanette, Luke and Willie then
told Ms. Shaw to tell anyone who asked
that Jeanette had been shot while
trespassing in a citrus grove. The
import of the story told in the
depositions was to implicate "Luke and
Willie" in the Kersey mrders and to
exculpate the defendants. In one of her
depositions, Ida Jean Shaw stated that
her earlier statement implicating the
defendants in the crimes was false and
was fabricated by agreement with
Jeanette Armstrong and calculated to put
Earl and Sampson in jail and thus be
free of the strictures of married life.

Ida Jean Shaw, over the objection of
the defendants, was called to testify at
trial as a court's witness. The court
examined her and then the state and
counsel for each of the defendants
cross-examined her.

Ms. Shaw testified at trial as
follows. At and around the time of

the crimes, she and the appellant lived
together in a house on Revell Road in
Wauchula, and that they had held
themselves out to friends and neighbors
and in business transactions as husband
and wife for twelve years. Her daughter
Jeanette was married to Sampson
Armstrong end lived in Lake Placid. On
the weekend preceding Tuesday, April
Ist, Ms. Shaw celebrated a birthday. On
Friday night, Jeanette came to her home.
On Sunday, she and Jeanette went to Lake
Placid and brought Sampson back. On
Monday night, March 31, Jeanette,
Sampson, and the appellant Enmund were
all there at the house in Wauchula. On
pre 4, April lst, when she awoke at
about 7:45 a.m., none of the three was
there. Neither was her brown and yellow
1969 Buick.

Ms. Shaw got up and went to the
neighbcrhood wash house. About ten
minutes later, either Enmund or Sampson
Armstrong came into the wash house and
told her that Jeanette had been shot.
Ida Jean Shaw went back to the house.
Jeanette was in the appellant's red
Plymouth automobile. Sampson was with
her and the appellant was in the house.
Ms. Shaw then took Jeanette up to the
local store corner and called an
ambulance. Then appellant Enmund came
to the corner where they were awaiting
the ambulance and asked her what had
happened to Jeanette. Ida Jean Shaw
told Enmund that Jeanette had been shot
In an orange grove. Then the ambulance
came and Ida Jean accompanied Jeanette
on the ride to the hospital. Ida Jean
learned from Jeanette how she was shot.
Earl followed in a separate car.
Sampson Armstrong also went to the
hospital that day.

After spending Tuesday morning at the
hospital, Ms. Shaw left there with Earl
and Sampson. They went to Wauchula to
get the children and then went on to
Lake Placid. On the way to Wauchula,
Ida Jean Shaw asked the appellant "why
he did it." He replied that he had seen
Mr. Kersey's money and therefore decided
to rob him. Sampson Armstrong said that
he made sure the people were dead.

Ida Jean Shaw testified further
that on Wednesday, April 2, 1975, she,
Earl, Sampson, and some of her children
were in a car on their way home from the
hospital when Sampson 2 her 8200. By
passing written notes in the car, she

asked him how much money he got out of
the robbery and he responded that he had
$600 left. She took the $200 and made a
loan payment on an account of Earl
Enmund's that was in arrears. There was
corroborating testimony of this, and
that the bill was paid with two one-
hundred-dollar bills.

Ms. Shaw testified that prior to the
events of April lst, she kept a .22
caliber pistol in the et compartment
of her car. On April 2, she removed the
gun from the loft at her house on Earl
Enaund's directions. He and Sampson
told her to get rid of the gun and also
a .38 caliber pistol that was at the
house, because, Sampson said, they had
been used to kill some people. She put
the guns in the bottom of a bucket of
greens and gave the bucket to a friend,
Jeanette's paternal uncle. This person
testified chat the bucket was a large
and heavy metal one and that the greens
spoiled in the crunk of his car. He
said he threw chem away, bucket and all,
and didn t know about the guns. The
murder weapons were never recovered.

At trial Ms. Shaw testified that the
story about Luke and Willie was a
complete fabrication, and that she made
up the story and related ic at the
request of the defendants. Ear! Enmund,
she said, instructed her on this matter
in letters smuggled out of the jail.

The state's counsel moved that
Ida Jean Shaw be called as a court's
witness on the ground that due to the
inconsistencies in her pretrial state-
ments, the state was not certain how she
would testify and would not vouch for
her credibility. Through her examina-
tion by the court, cross-examination by
the state, and cross-examination by
counsel for each of the defendants, the
following matters pertaining to her
credibilicy were brought out for
consideration by the jury. Ms. Shaw was
granted immunity from prosecution for
any role she might have played in the
murders and robbery. As related above,
she gave several inconsistent statements
during the investigation and prosecution
of the crimes. One of her statements
was in a deposition under oath, and at
trial she conceded that she had lied in
that statement. Prior to the trial, she
was charged with perjury. She was
arrested and held in jail for thirteen
days. The prosecutors advised

her of the maximum penalty for the crime
of which she stood accused. Then they
promised her that she would not be
prosecuted for perjury if she would
testify at the murder and robbery trial
and tell the truth.

399 So.2d at 1363-1367.

JURISDICTION

The jurisdiction of this Court is asserted under 28 U.S.C.

§ 1257(3).

REASONS WHY THE WRIT
SHOULD NOT BE GRANTED

The sole issue raised by Petitioner is that his death
sentences are allegedly disproportionate to the crimes of murder
for which he was convicted. Petitioner's argument is predicated
on his allegation that he did not intend that the victims be
killed and that he was not physically present at the exact scene
of the murders. However, the State of Florida strongly asserts
that the penalty for a first degree murder conviction is a matter
of state law and that Petitioner has not presented a substantial

federal question.

In Gregg v. Georgia, 428 U.S. 153, 187 (1976), this Court
held that a sentence of death could be imposed for a particular
offense if the procedure followed in reaching the decision to
impose the death penalty was not constitutionally Af ire and the
sentence was based upon consideration of the particular circum-
tances of the offense and the character of the offender. In
reaching its conclusion, the Court recognized that the deter-
mination of whether a particular crime was suitable for the death
penalty was a question particularly suited to resolution by state

legislators and that "a heavy burden rests on those who attack

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the judgment of the representatives of the people." Id. at 428
U.S. 175. “That States have authority to make aiders and
abettors equally responsible, as a matter of law, with
principals, or to enact felony-murder statutes is beyond

constitutional challenge." Lockett v. Ohio, 438 U.S. 586 (1978),

Petitioner contends that, notwithstanding the legislative
mandate of the will of the people of the State of Florida that
the death penalty is appropriate in a felony murder case, the
death sentence in Petitioner's case is disproportionate to the
crime because Petitioner did not intend that the victims be
killed and he was not present at the exact scene of the murders.
However, the Court needs only to look at some of the facts of
Petitioner's case in order to determine that his involvement in
the crime was much more substantial that he would have the Court
believe. For example, the trial court found as a matter of fact
and as an aggravating circumstance that the murders were
committed for pecuniary gain and that the ropbery of the elderly
Mr. Kersey was planned by Petitioner after he had personally
observed Mr. Kersey with a large amount of money on his person.

Enmund, supra, at 1372. The trial court stated that Petitioner

was an accomplice in the capital felony and that his parti-
cipation in the capital felony was major. The trial court also
found that Petitioner actively participated in an attempt to
avoid detection by causing the murder weapons to be destroyed or
lost. Id. at 1373. Similarly, the Supreme Court of Florida
found that it was reasonable for the jury to conclude that
Petitioner was present in the getaway car merely a few hundred
feet away from the murder scene and that Petitioner was the one
who drove the getaway car when it was seen speeding away from the
murder scene on the morning of the killings. Id. at 1365, 1370.
Thus, when considering whether Petitioner's sentence was
disproportionate to the crimes for which he was convicted, it
must be remembered that his participation was major. Id. at
1373.

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Again, however, despite the fact that Petitioner's
participation in the murders was substantial, Petitioner claims
that the death penalty was disproportionate in his case because
he did not intend to kill. In support of this proposition, he
relies heavily on Justice White's concurring opinion in Lockett,
supra. Although Lockett's death sentence was reversed on other
grounds, Justice White went further and expressed the view that
the Eighth Amendment was violated by imposition of the death
penalty “without a finding that the defendant possessed a purpose
to cause the death of the victim." Id. at 438 U.S. 624.
However, in a separate concurring opinion, Justice Blackmon

—strongly disagreed:

I do not find entirely convincing the
disproportionality rule embraced by ny
Brother White. The rule that a
defendant must have had actual intent to
kill, in order to be capitally sen-
tenced, does not explain why such intent
is the sole criterion of culpability for
Eighth Amendment purposes. What if a
defendant personally commits the act
proximately causing death by pointing a
loaded gun at the robbery victin,
verbally threatens to use fatal force,
admittedly does not intend to cause a
death, yet knowingly creates a high
probability that the gun will discharge
accidentally? What if a robbery parti-
cipant, in order to avoid capture or
even for wanton sport, personally and
deliberately uses grave physical force
with conscious intent to inflict serious
bodily harm, but not to kill, and a
death results? May we as judges say
that for Eighth Amendment purposes the
absence of a "conscious purpose of
ere death," post, at 628, 57 L Ed

d, at 1004, transforms the culpability
of those defendants’ actions?

Applying a requirement of actual
intent to kill to defendants not
immediately involved in the physical act —
causing death, moreover, would run
aground on intricate definitional
problems attending a felony murder.

What intention may a State attribute to
a robbery participant who sits in the
getaway car, knows that a loaded gun
will be brandished his companion in
the robbery inside the store, is willing
to have the gun fired if necessary to
make an escape but not to accomplish the
robbery, when the victim is shot by the
companion even though not necessary for

11

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escape? What if the unarmed partici-
pant stands immediately inside the store
as a lookout, intends that a loaded gun
merely be brandished, but never bothered
to discuss with the triggerman what
limitations were appropriate for the
firing of the gun? What if the same
lookout personally intended that the gun
never be fired, but, after his companion
fires a fatal shot to prevent the victim
from sounding an alarm, approves and
takes off?

The requirement of actual intent to
kill in order to inflict the death
penalty would require this Court to
impose upon the States an elaborate

."constitutionalized" definition of the
requisite mens rea, involving myriad
problems of line drawing that normally
are left to jury discretion but that, in
disproportionality analysis, have to be
decided as issues of law, and
interfering with the substantive
categories of the States’ criminal law.
And such a rule, even if workable, is an
incomplete method of ascertaining cul-
pability for Eighth Amendment purposes,
which necessarily is a more subtle
mixture of action, inaction, and degrees
of mens rea.

Id. at 438 U.S. 614 n.2.

Justice Rehnquist reached a similar conclusion in even
more direct terms:

I finally reject the proposition
urged by my Brother White in his
separate opinion, which the plurality
finds it unnecessary to reach. That
claim is that the death penalty, as
applied to one who participated in this
murder as Lockett did, is
“disproportionare" and therefore
violative of the Eighth and Fourteenth
Amendments. I know of no principle
embodied in those Amendments, other than
perhaps one's personal notion of what is
a fitting punishment for a crime, which
would allow this Court to hold the death
penalty imposed upon her unconstitu-
tional because under the judge's charge
to the jury the latter were not :
required to find that she intended to
cause the death of her victim. As my
Brother White concedes, approximately
half of the States "have not legisla-
tively foreclosed the possibility of
imposing the death penalty upon those
who do not intend to cause death."

Ante, at 625, 57 L Ed 2d, at 1002.
Centuries of common-law doctrine
establishing the felony-murder

doctrine, dealing with the relationship
between aiders and abettors and
principals, would have to be rejected to

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adopt this view. Just as surely as many
thoughtful moralists and penologists
would reject the Biblical notion of "an
eye for an eye, a tooth for a tooth," as
a guide for minimum sentencing, there is
nothing in the prohibition against cruel
and unusual punishments contained in the
Eighth Amendment which sets that
injunction as a limitation on the
maximum sentence which society may
impose.

Id. at 438 U.S. at 635, 636. See also, Stein v. New York, 346
U.S. 156 (1953), where this Court previously upheld the death
sentence of a defendant convicted of felony murder, although the

defendant did not actually do the killing.

Thus, there is competent authority that a defendant's lack
of intent to kill should not be a bar to the imposition of the
death penalty. This is not to say, however, that in Florida the
intent of a defendant convicted of felony murder is not rele-
vant--evidence of a defendant's intent is properly admissible in
mitigation during the sentencing phase of a capital trial. The
jury's weighing of the aggravating circumstances versus ait ga-
ting circumstances has previously been upheld by this Court in

Proffitt v. Florida, 428 U.S. 242 (1976). See also, Jacobs v.

State, 396 So.2d 1113, 1117 (Fla. 1981), where the Supreme Court
of Florida has recently stated that "the jury should be allowed
to weigh all the facts and circumstances surrounding the
homicide, so that their advisory verdict will be the result of
reasoned judgment rather than an exercise in discretion."
However, it is extremely significant to note that during the
sentencing phase of Petitioner's trial, Petitioner offered

absolutely no evidence in mitigation (R 1677).

ce,
Therefore, it is clear that under Florida law the degree,
nature, and character of a defendant's mens rea in regard to the
commission of the mrder, while having little or no outward
bearing on the question of guilt under the felony-murder concept,

are highly relevant in the sentencing process and are admissible

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n Florida in mitigation. As stated previously, Petitioner took
an active part in the criminal transaction which resulted in his
murder convictions. While it does not appear that he pulled the
trigger, he was certainly free to present this fact in mitiga-
tion. Under Florida law, both the jury which renders an advisory
sentence and the trial court which determines the actual
sentence, are permitted to consider all the facts and circum-
stances of the crime, including the fact that the convicted felon
did not intend to kill. This procedure is not constitutionally

infirm. Proffitt, supra. Moreover, the fact that Florida law

thus encourages those engaged in robbery to leave their guns at
home and to persuade their coconspirators to do the same in the
hope that fewer victims of robberies will be killed does not

offend the Constitution.

CONCLUSION

The decision of what penalty to impose for a particular
type of criminal conduct is one traditionally left with the
lawmaking bodies of the various states. The state legislature is
in the best position to determine the will of the people, and
such legislative determination should not lightly be set aside.
Gregg, supra. Although Petitioner was apparently not the
triggerman in the two murders involved in his case, both the
trial court and the Supreme Court of Florida found that his
participation in the crimes was substantial in that he devised
the idea for the robbery, planned the robbery, assisted in the
perpetration of the robbery, drove the getaway car, and helped
dispose of the murder weapons. That Florida has chosen to punish
such reprehensible criminal conduct with a death sentence is not
violative of the Constitution. Petitioner has simply not
asserted a substantial federal constitutional question.
Accordingly, Respondent respectfully requests that Petitioner's
petition fer writ of certiorari be denied.

Respectfully submitted:
JIM SMITH

Attorney General

-14-

° R
Assistant Attorney

COUNSEL OF RECORD

Assistant Attorney General
OF COUNSEL.
THE CAPITOL, 1502
Tallahassee, FL 32301
(904) 488-0600

COUNSEL FOR RESPONDENT

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy hereof has
been furnished to WILLIAM C. MCLAIN, Assistant Public Defender,
Chief, Capital Appeals, Hall of Justice Annex, 495 N. Carpenter
Street, Bartow, FL 33830-3798, by U. S. Mail this 25%h day of

September, 1981.

Assistant Attorney “Gene

COUNSEL OF RECORD

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_1753%3A04. Public record. Not legal advice.